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7. Omissions and Distortions: the Majority Opinion
The majority opinion makes a caricature of the findings it
purports to adopt by ignoring some and distorting others.56
Some examples:
First, on the meaning and application of the term “control”:
neither “control” nor “lack of control” is a monolithic concept,
nor do they occupy opposite sides of the same coin. Many
elements or strands are braided into the ownership and control of
a claim or cause of action. The question is whether enough
elements of control over all or part of the claim are given up by
the client who enters into a contingent fee agreement to make it
inappropriate to include the entire amount of the recovery in the
client’s gross income. The correct answer is to allocate the
recovery in the first instance between attorney and client as
their interests may appear in accordance with the terms of the
contingent fee agreement.
Petitioner gave up substantial control over his claim, and
all control over the portion attributable to the contingent fee.
Even if Smelker v. Chicago & N.W. Ry., 81 N.W. 994, 994 (Wis.
1900) is no longer good law under the Wisconsin attorney’s lien
law and the Wisconsin ethical rules require an attorney to abide
by a client’s decision to accept an offer of settlement, the
56 In so doing, the majority opinion creates a mismatch
between findings of fact and opinion that is reminiscent of the
centaur in Greek mythology.
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